Revisiting the Rehabilitation Act

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By Carol Glazer and Jesse Fryburg, National Organization on Disability

1973 was a momentous year in the United States. The Supreme Court overturned states’ bans on abortion with Roe v. Wade. The Vietnam War ended. Secretariat became the first Triple Crown winner in 25 years. Homosexuality was removed as a disorder from the DSM-II.

Largely lost in the annals of 1973, however, is the poorly-named Rehabilitation Act, which among other things prevents the federal government and its contractors from discriminating against individuals with disabilities in hiring. The goal: put Americans with disabilities to work.

How did such a seemingly significant civil rights legislation become an historical footnote It may not have been hair-raising like Secretariat, nor as controversial as Roe. But the bill had the potential to impact millions of people and should have created more than a few ripples on the horizon of social notice. Perhaps it has been overshadowed by the subsequent, more sweeping Americans with Disabilities Act (ADA), but that doesn’t tell the whole story.

At its core, the Rehab Act was a sprinkler where a firehose was needed: well-intentioned but lacking power. It proffered a narrow, subjective definition of “disability,” and despite making disability a protected class, did not prescribe mechanisms for enforcing those protections. As a result, the Act has not meaningfully impacted employment rates for Americans with disabilities.

But the foundation of the bill was strong. So disability organizations including the National Organization on Disability worked with the Obama Administration to shore it up.

The revised law, signed in 2014, built upon the expanded, more inclusive definition of “disability” established by the ADA Amendments Act (2008). It instituted a workforce disability goal of 7% for all federal contractors, and compelled them to invite job applicants to voluntarily disclose their disabilities. Additionally, the law required contractors to show progress in meeting the disability hiring goals, translating the law’s aspirations into actual action.

There remain challenges, however, foremost among which: the new rules have gone largely unenforced due to a lack of compliance audits. According to the Government Accountability Office, 85% of required federal contractors do not have affirmative action plans (the basis for the audits).

Enter an unlikely enforcer, stage left: The Trump Administration. Craig Leen, Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), which enforces such regulations, recently announced that OFCCP is planning to conduct 500 “focused reviews” or audits of disability practices alone, in 2019, the largest effort of its type in recent memory. At long last, five years after the 503 rule change was signed, firms will be held accountable for living up to the letter and spirit of the law.

For generations, persons with disabilities have been an asset to American industry, and offered companies talent, creativity, and grit. They have helped companies tap the $500B+ disability consumer market and been drivers of innovation; from curb cuts in sidewalks to touch screens on iPhones.

If all of these carrots haven’t compelled a closer look at candidates with disabilities, look out: the stick is coming.